Victor Restis & Enters. Shipping & Trading S.A. v. Am. Coal. Against Nuclear Iran, Inc., No. 13 Civ. 5032(ER).

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRAMOS
Citation53 F.Supp.3d 705
PartiesVictor RESTIS and Enterprises Shipping and Trading S.A., Plaintiffs, v. AMERICAN COALITION AGAINST NUCLEAR IRAN, INC. a/k/a United Against Nuclear Iran, Mark D. Wallace, David Ibsen, Nathan Carleton, Daniel Roth, Martin House, Matan Shamir, Molly Lukash, Lara Pham, and Does 1–10, Defendants.
Docket NumberNo. 13 Civ. 5032(ER).
Decision Date30 September 2014

53 F.Supp.3d 705

Victor RESTIS and Enterprises Shipping and Trading S.A., Plaintiffs,
v.
AMERICAN COALITION AGAINST NUCLEAR IRAN, INC. a/k/a United Against Nuclear Iran, Mark D. Wallace, David Ibsen, Nathan Carleton, Daniel Roth, Martin House, Matan Shamir, Molly Lukash, Lara Pham, and Does 1–10, Defendants.

No. 13 Civ. 5032(ER).

United States District Court,
S.D. New York.

Signed Sept. 30, 2014.


[53 F.Supp.3d 709]


Abbe David Lowell, Jeremy Solomon Siegel, Michael Bhargava, Chadbourne & Parke LLP, Washington, DC, Benjamin David Bleiberg, Serine Rami Consolino, Chadbourne & Parke LLP, New York, NY, for Plaintiffs.

Lee Scott Wolosky, Amy Lynn Neuhardt, Boies, Schiller & Flexner, LLP, Lisa Jane Hart, Richard Benjamin Harper, Baker Botts L.L.P., New York, NY, Brian Joseph Stack, Stack Fernandez Anderson & Harris, P.A., Miami, FL, Douglass A. Mitchell, Boies, Schiller & Flexner LLP, Las Vegas, NV, Jonathan B. Rubenstein, Baker Botts L.L.P., Dallas, TX, for Defendants.


OPINION AND ORDER

RAMOS, District Judge.

This is a tort action concerning accusations that Victor Restis and Enterprises Shipping and Trading S.A. (collectively, “Plaintiffs”) have engaged in prohibited business transactions in Iran. Plaintiffs bring this action against American Coalition Against Nuclear Iran Inc., a/k/a United Against Nuclear Iran (“UANI”), Mark D. Wallace, David Ibsen, Nathan Carleton, Daniel Roth, Martin House, Matan Shamir, Molly Lukash, Lara Pham, and Does 1–10 (collectively, “Defendants”), alleging that as a result of UANI's “name and shame” campaign to destroy their reputations, Defendants are liable for defamation, tortious interference with prospective economic advantage, tortious interference with contract, intentional infliction of emotional distress, and prima facie tort. Pending before the Court is Defendants' motion to dismiss the Second Amended Complaint (“SAC”).1 Doc. 25. For the

[53 F.Supp.3d 710]

reasons discussed below, Defendants' motion to dismiss is GRANTED in part and DENIED in part.

I. Background

Plaintiff Victor Restis, a citizen and resident of Greece, is a highly successful and respected entrepreneur in the shipping industry. SAC ¶ 23. 2 Mr. Restis and his family are among the largest and most successful ship owners in Greece, and their companies employ thousands of individuals. Id. Plaintiff Enterprises Shipping and Trading S.A. (“EST”) is one of the world's largest independent off-shore shipping companies and the flagship of the Restis shipping businesses. Id. ¶ 24. EST manages more than 80 ships and employs approximately 6,000 sailors worldwide, maintaining a fleet whose commercial value exceeds $2.5 billion. Id.

Defendant UANI is a not-for-profit corporation that, according to its website, seeks to prevent Iran from fulfilling its ambition of obtaining nuclear weapons. Id. ¶ 25. To that end, UANI engages in private sanctions campaigns and legislative initiatives focused on ending corporate support of the Iranian regime. Id. According to the SAC, although UANI advertises itself as an American not-for-profit organization, it is in fact primarily funded by foreign interests and governments whose interests and agendas are not disclosed to the public. Id.

Plaintiffs have named various UANI officers and employees as defendants in the instant action. Defendant Mark D. Wallace, a co-founder and current CEO of UANI, is a former representative of the Management and Reform Section of the U.S. Mission to the United Nations. Id. ¶ 26. Defendant David Ibsen is the Executive Director of UANI. Id. ¶ 27. In that capacity, Defendant Ibsen runs the day-to-day operations of UANI, and has been “integrally involved” in UANI's “name and shame” campaigns. Id. Mr. Ibsen allegedly directed the campaign against Plaintiffs, participated in drafting the defamatory publications, and coordinated UANI staff in producing and distributing the publications. Id. Defendant Nathan Carleton, the Communications Director for UANI, manages UANI's public communications and has similarly been integrally involved in its “name and shame” campaigns, including that against Plaintiffs. Id. ¶ 28. Defendant Carleton helped draft the defamatory publications, distributed many of them as press releases, and personally spoke with and emailed various reporters in order to disseminate the defamatory allegations against Plaintiffs. Id.

Matan Shamir is UANI's Director of Research and Projects. Id. ¶ 29. According to Defendant Shamir's LinkedIn profile, he directs research efforts on companies doing business with Iran and manages UANI's social media campaign on Facebook, Twitter, and YouTube. Id. Defendant Shamir “directly contributed” to the creation and publication of the defamatory publications, including by drafting versions

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of the publications, posting them on UANI's website, and working with a third-party vendor to create graphics to accompany the publications. Id. Molly Lukash is UANI's Director of Social Media. Id. ¶ 30. Ms. Lukash participated in “crafting” the defamatory allegations and worked with a digital media consulting firm in order to prepare the allegations for publication. Id. She also drafted an “Action Alert” sent to UANI readers which contains Defendants' defamatory allegations. Id.

Plaintiffs have also named the following individuals as defendants: Martin House, a UANI Project Director; Lara Pham, UANI's Director of Operations; and Daniel Roth. Id. ¶¶ 31–33.3 According to Mr. House's LinkedIn profile, he has led campaigns that publicized major shipping sanctions frauds. Id. ¶ 31. Defendants House and Roth are alleged to have met with a reporter for a maritime industry publication on May 22, 2013 to further disseminate the defamatory allegations against Plaintiffs. Id. ¶¶ 31, 33. And according to Plaintiffs, both Ms. Pham and Mr. Roth helped draft the defamatory allegations against Plaintiffs and worked with other defendants to prepare them for final publication. Id. ¶¶ 32, 33.

UANI's Name and Shame Campaign Against Plaintiffs
1. May 2013 Communications

According to Plaintiffs, UANI launched a “Shipping Campaign” to target, inter alia, international cargo shippers in order to ensure that Iran's shipping and port sectors were isolated from international markets. Id. ¶ 39. In March 2013, UANI called on United States port authorities to deny docking privileges to any shipping company that continues to do business in Iran. Id. At the same time, UANI pressured international shipping companies to pull out of Iran. Id.

On May 13, 2013, UANI sent a public letter to Mr. Restis in his capacity as the Chairman of First Business Bank (“FBB”). Id. ¶ 40.4 Plaintiffs allege that in the letter, Defendant Wallace defamed them by falsely alleging that they and FBB had illicit business dealings with sanctioned-designated individuals and Iranian oil and shipping entities. Id. The letter also accused Mr. Restis of engaging in a “significant and potentially lucrative illicit business relationship” with Greek businessman Dimitris Cambis to illegally export Iranian oil in violation of international sanctions. Id. Mr. Cambis was later sanctioned by the United States for conspiring with the Iranian regime and Iran's Ministry of Petroleum (“MoP”). Id.

Plaintiffs allege that Defendants sent copies of the May 13, 2013 letter to at least 18 other individuals, including senior Members of Congress, representatives of the Obama Administration, and members of the Greek Government. Id. ¶ 43.

According to Plaintiffs, UANI relied on two fraudulent and facially unreliable documents as supposed confirmation of the allegations in the May 13, 2013 letter. Id. ¶ 42. First, Plaintiffs allege that UANI relied on a letter dated April 25, 2012, purportedly from Mr. Cambis, which is addressed to Professor Christos Kazantis, the CEO of FBB. Id. In that letter, Mr. Cambis discussed the relationship between his company, Athene Consulting House, and the Iranian MoP, and according to UANI, attempts to recruit Mr. Restis as a

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partner in Cambis' “illicit Iranian investment scheme.” Id. The second source for UANI's accusations is an “agreement letter” dated April 25, 2012, purportedly from Concept Consulting Ltd., a Cypriot consulting company, to Mr. Restis. Id. According to UANI, the agreement letter confirmed FBB's engagement of Concept Consulting to attract “major international investors,” including Iranian investors with alleged ties to the MoP. Id.

Plaintiffs state that UANI repeated the false accusations in four press releases issued on May 13 and May 14, 2013. Id. ¶¶ 44, 45. Two of the press releases graphically depicted two large images of Iran President Mahmoud Ahmadinejad. Id. The press releases named Defendant Carleton as the contact for media inquiries. Id.

Also on May 13, 2013, UANI posted the allegations in a “sensationalized ‘call to action’ ” on its website. Id. ¶ 46. According to Plaintiffs, the home screen of UANI's website showed a large photograph of Mr. Restis with a picture of a tanker ship in front of him, and featured an active link titled: “Call on Greek Businessman VICTOR RESTIS & RESTIS GROUP ENTITIES to end all Iran business schemes.” Id. When users clicked on the link, they were taken to a webpage entitled “Action Alert,” which encouraged them to “Take Action” by providing their names and contact information. Id. UANI promised to then convey to Plaintiffs the individual's demand that they “end their purported role as ‘front-men for the illicit activities of the Iranian regime’ and their ‘very significant, unethical—indeed illegal—support [of] the Iranian MoP....’ ” Id.

On May 14, 2013, UANI further disseminated the statements through Facebook posts and Twitter messages. See id. ¶¶ 47, 49–51. Readers of one such Facebook post made at least 33 comments, including insulting and threatening messages that refer to Mr. Restis as “a ‘bastard,’ an ‘animal,’ a ‘Greek f* * k,’ a ‘crook,’ a ‘piece of crap,’ a ‘self satisfied smug bastard...

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